[Federal Register Volume 64, Number 32 (Thursday, February 18, 1999)]
[Proposed Rules]
[Pages 8034-8038]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-3996]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[MD27-1-6150; FRL-6303-8]


Approval and Promulgation of Air Quality Implementation Plans; 
Maryland; Reasonably Available Control Technology Requirements for 
Major Sources of Nitrogen Oxides

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing conditional limited approval of a State 
Implementation Plan (SIP) revision submitted by the State of Maryland. 
This revision to Maryland's Regulations requires all major sources of 
nitrogen oxides (NOX) to implement reasonably available 
control technology (RACT) and was submitted to comply with the 
NOX RACT requirements of the Clean Air Act (the Act). Also, 
Maryland's regulations are being amended by adding three definitions 
and amending the definition for ``fuel burning equipment.'' The 
intended effect of this action is to propose conditional limited 
approval of the Maryland NOX RACT regulation, and also to 
propose full approval of the new and revised definitions submitted by 
the State of Maryland.

DATES: Written comments must be received on or before March 22, 1999.

ADDRESSES: Written comments may be mailed to David L. Arnold, Chief, 
Ozone and Mobile Sources Branch, Mailcode 3AP21, U.S. Environmental 
Protection Agency, Region III, 1650 Arch Street, Philadelphia, 
Pennsylvania 19103. Copies of the documents relevant to this action are 
available for public inspection during normal business hours at the Air 
Protection Division, U.S. Environmental Protection Agency, Region III, 
1650 Arch Street, Philadelphia, Pennsylvania 19103; and the Maryland 
Department of the Environment, 2500 Broening Highway, Baltimore, 
Maryland, 21224.

FOR FURTHER INFORMATION CONTACT: Carolyn M. Donahue, (215) 814-2095, at 
the above EPA Region III address, or via e-mail at 
[email protected]. While information may be requested via e-mail, 
any comments must be submitted in writing to the EPA Region III address 
above.

SUPPLEMENTARY INFORMATION:

I. Background

    On July 11, 1995, the Maryland Department of the Environment (MDE) 
submitted a revision to its State Implementation Plan (SIP) for the 
control of NOX emissions from major sources. The revision 
consisted of a new version of Code of Maryland Regulations (COMAR) 
Title 26, Subtitle 11, Chapter 09 ``Control of Fuel Burning Equipment 
and Stationary Internal Combustion Engines,'' Regulation 26.11.09.08 
``Control of NOX Emissions from Major Stationary Sources,'' 
which repealed and replaced the existing version of COMAR 26.11.09.08 
(hereafter Regulation .08). The new Regulation .08 requires major 
NOX sources in ozone nonattainment areas classified as 
moderate and above and/or located in the Ozone Transport Region (OTR) 
to comply with RACT requirements by May 31, 1995. Section B of COMAR 
26.11.09.01 ``Definitions,'' has been amended to include definitions 
for the terms ``annual combustion analysis,'' ``space heater'' and 
``system'' used in Regulation .08. Also, the definition for ``fuel 
burning equipment'' has been expanded to include stationary internal 
combustion engines and stationary combustion turbines.
    Section 182 of the Act defines a major NOX source as one 
that emits or has the potential to emit 25 or more tons of 
NOX per year (TPY) in any ozone nonattainment area 
classified as severe, or 50 or more TPY located in any ozone 
nonattainment area classified as serious. For any area in the OTR 
classified as attainment or marginal nonattainment, Secs. 182 and 184 
of the Act define a major stationary source of NOX as one 
that emits or has the potential to emit 100 or more TPY. Section 182 
requires that RACT on major stationary sources of NOX be 
implemented by no later than May 31, 1995.
    The major source size is determined by its location, the 
classification of that area, and whether it is located in the OTR, 
which is established by the Act. The Baltimore nonattainment area and 
Cecil County are classified as severe nonattainment areas. Calvert, 
Charles, Frederick, Montgomery and Prince George's Counties are 
classified as serious ozone nonattainment areas. The remaining counties 
in Maryland are classified as marginal or in attainment but are located 
in the OTR and therefore are treated as if they are classified as 
moderate nonattainment areas.

II. Summary of Maryland's SIP Revision

    Maryland submitted this SIP revision, establishing definitions and 
standards for operation of major NOX sources, on June 8, 
1993, and submitted two sets of amendments on July 11, 1995. Maryland

[[Page 8035]]

adopted the new Regulation .08 on April 13, 1993. Regulation .08 became 
effective on May 10, 1993. Maryland adopted the first set of amendments 
on May 24, 1994. These amendments became effective June 20, 1994. 
Maryland adopted the second set of amendments on April 13, 1995. The 
second set of amendments became effective on May 8, 1995.

COMAR 26.11.09.01 Definitions

    COMAR 26.11.09.01, ``Definitions,'' has been revised to add the 
terms ``annual combustion analysis,'' ``space heater,'' and ``system'' 
which are used in Chapter 09, ``Control of Fuel Burning Equipment and 
Stationary Internal Combustion Engines.'' Also, the definition for 
``fuel burning equipment'' has been expanded to include stationary 
internal combustion engines and stationary combustion turbines.

COMAR 26.11.09.08  Control of NOX Emissions From Major 
Stationary Sources

COMAR 26.11.09.08.A  Applicability
    Section A establishes the applicability of this regulation to 
owners or operators of an installation that is located at a premises 
that has a total potential to emit: 25 or more TPY in Baltimore City, 
Anne Arundel, Baltimore, Carroll, Harford, Howard Counties (the 
Baltimore severe nonattainment area) and Cecil County (part of the 
Philadelphia-Wilmington-Trenton severe nonattainment area), 50 or more 
TPY in Calvert, Charles, Frederick, Montgomery, and Prince George's 
Counties (the Maryland portion of the Washington, DC serious 
nonattainment area), or 100 or more TPY in Allegany, Caroline, 
Dorchester, Garrett, Kent, Queen Anne's, St. Mary's, Somerset, Talbot, 
Washington, Wicomico, or Worcester Counties.
    Sections B through G of Regulation .08 apply to an owner or 
operator of a major NOX source installation, except for 
those sources covered under Secs. H and J, that meets the 
NOX emission standards in Sec. C of this regulation or is 
required to submit a RACT determination to MDE. Section H of this 
regulation applies to owners or operators of a space heater, which is 
defined in COMAR 26.11.09.01 as fuel burning equipment that consumes 
more than 60% of its annual fuel use between October 31 of one year and 
March 31 of the next. Section J applies to an owner or operator of fuel 
burning equipment with a rated heat input capacity of 100 million 
British thermal units (MMBtu) per hour or less. Sources subject to 
Sec. H are not subject to Sec. J. Except for a source or modification 
which is subject to new source review and/or prevention of significant 
deterioration (NSR/PSD) and, therefore, subject to lowest achievable 
emission rate (LAER) and/or best available control technology (BACT) 
requirements, a person subject to this regulation may not construct a 
new or replace an existing NOX source after May 8, 1995, 
unless the source meets RACT as determined by MDE and approved by EPA.
COMAR 26.11.09.08.B  NOX Control Requirements
    All major sources of NOX, except those provided for in 
Secs. H and J, are required to notify MDE that each installation will 
comply by meeting the emission standards of Sec. C, or submit a 
proposal with technical and economic support documentation for a case-
by-case RACT determination and a schedule to implement RACT no later 
than May 31, 1995. In cases where the owner elects to comply with the 
presumptive limits of Sec. C, the owner or operator is required to 
submit: (1) Stack testing or continuous emission monitoring (CEM) data 
to support that the source or unit already is in compliance with the 
applicable limit, or (2) a plan for compliance. The plan for compliance 
must include the control method, equipment purchase dates, construction 
dates and a compliance date not later than May 31, 1995.
    Notification to MDE and submittal of a RACT proposal and schedule 
must have been made no later than July 1, 1993 by persons who own 
electric generating plant equipment subject to Title IV, Phase I of the 
Act. RACT proposals must include: (1) Identification of combustion 
modifications, fuel conversions, or other modifications to be 
implemented, (2) data and costs to support the proposed RACT standard, 
(3) a demonstration that shows why the proposed standard is RACT for 
the particular installation, the expected emissions reduction, and any 
available emissions data for existing operating installations, and (4) 
baseline NOX emissions for the installation established with 
CEM data or stack test data taken during steady state operation. By 
February 15, 1994, owners of sources subject to this regulation, other 
than electric generating plant equipment subject to Title IV, must have 
submitted a RACT proposal that identified combustion modifications, 
fuel conversions, or other equipment or process modifications or 
adjustments to reduce NOX emissions, and data that support 
the proposed RACT standard.
COMAR 26.11.09.08.C  Emission Standards
    Maryland's proposed NOX RACT regulation contains 
presumptive emission limits for major stationary sources of 
NOX as follows: for gas fired wall and tangential units, 0.2 
pounds of NOX per million British thermal units (lbs/MMBtu) 
input; for oil/gas fired wall and tangential units, 0.25 lbs/MMBtu 
input; for oil/gas fired cyclones, 0.43 lbs/MMBtu input; for dry bottom 
coal fired wall and tangential units, 0.38 lbs/MMBtu input; for wet 
bottom coal fired wall and tangential units, 1.0 lb/MMBtu input; and 
for wet bottom coal fired cyclones, 0.55 lbs/MMBtu. All emission limits 
are required to be met over a 24-hour averaging period.
    EPA is proposing to approve the above emission limits as RACT for 
those categories of boilers and steam generators referenced in 
Sec. C(2). The 24 hour-averaging period for determining compliance is 
consistent with protection of the short-term ozone NAAQS. EPA policy 
for NOX RACT for four categories of utility boilers (wall-
and tangential-fired--gas/oil, coal dry bottom), were set in the 
``NOX Supplement to the General Preamble for Implementation 
of Title I'' (``NOX Supplement'') (57 FR 55620, November 25, 
1992). Emission limits for other source categories are RACT for 
NOX if comparable to RACT for these certain utility boilers. 
Comparability is based upon emission reduction, cost and cost-
effectiveness. EPA has determined that the limits set in this 
regulation for these same four categories of utility boilers as in the 
NOX Supplement meet the requirement for RACT.
COMAR 26.11.09.08.D  Emission Reduction Averaging (RACT Bubbles)
    Section D allows sources to use an alternative method of compliance 
by achieving an overall source or system-wide NOX emission 
reduction that is equivalent to reductions achieved had RACT been 
implemented on an individual installation basis. Section D permits MDE 
to allow the inclusion of sources outside Maryland in an emissions 
trade consistent with the policies of the EPA and the Ozone Transport 
Commission. A source proposing to average NOX emissions must 
maintain records for at least 3 years to demonstrate continuous 
compliance with this regulation. Records must include daily hours of 
operation, total daily production or fuel use, and an estimate of the 
total daily emissions from the premises or system. Also, a RACT 
proposal that involves fuel switching must be consistent with

[[Page 8036]]

fuel switching policies established by EPA. EPA's fuel switching policy 
allows major coal fired facilities to switch to burning natural gas 
during the ozone season (the summer months) and switch back to coal for 
the rest of the year, provided that annual standards are met.
COMAR 26.11.09.08.E & F  Compliance Date and Reporting Requirements
    Major NOX source owners or operators must have complied 
with RACT standards by May 31, 1995. Compliance with RACT requirements 
should be based on CEM data collected in accordance with COMAR 
26.11.09.10 and .11, which are consistent with EPA approved methods. If 
the installation is stack tested, Method 7 must be used, and the 
results must be submitted to MDE within 45 days after test completion.
COMAR 26.11.09.08.G  Establishing Enforceable RACT Standards
    RACT for NOX emissions must be established by MDE as a 
condition to a permit or order, or in a regulation promulgated by MDE. 
This provision requires that MDE submit each RACT determination to EPA 
for approval as a revision to the Maryland SIP.
COMAR 26.11.09.08.H  Requirements for Space Heaters
    Section H establishes that a space heater owner or operator must 
submit to MDE a list of the affected installations at each premises, 
the types of fuel used, the monthly fuel consumption for each 
installation for each calendar year beginning with 1989, and fuel use 
summaries demonstrating that the 60% requirement, as explained in the 
definition of space heater, is met. The owner or operator also must 
develop an operating and maintenance plan to minimize NOX 
emissions, based on equipment vendors recommendations and subject to 
review by MDE, and must have implemented this plan by November 15, 
1994. Operators are required to attend in-state training programs on 
NOX reductions at least once every three years, and the 
owner must maintain a record of training attendance for each operator 
for no less than 6 years. These records should be made available to MDE 
upon request. EPA interprets ``an operation and maintenance plan to 
minimize NOX emissions based on recommendations from 
equipment vendors,'' as stated in Sec. H(b), to mean only technically 
supportable operation and maintenance requirements that result in the 
equipment being operated, maintained and repaired in a manner that 
achieves the minimization of NOX emissions.
    Any fuel burning equipment that at any time after October 1, 1989 
has not satisfied the conditions for a space heater, specified in COMAR 
26.11.09.01.B(7), is subject to RACT as determined by MDE. The owner or 
operator of this equipment must submit a RACT proposal to MDE for 
approval not later than 60 days after the date when the equipment did 
not qualify as a space heater. Also, a space heater owner or operator 
must maintain monthly fuel consumption records on site for not less 
than 3 years, and must make these records available to MDE upon 
request.
COMAR 26.11.09.08.I  General Requirements
    Section I states that the owner or operator of a major 
NOX source must provide emissions data, perform stack tests 
and identify cost effective control methods at the request of MDE. 
After implementing RACT according to this regulation, if a major 
NOX source causes actual NOX emissions of 1 or 
more tons per day, the owner must submit to MDE a description of 
NOX emission reduction methods. This description must 
outline measures to reduce NOX emissions beyond the level 
achieved by implementing RACT according to this regulation, and must 
consist of methods to reduce NOX emissions by 25, 50, and 
75% from base year emissions beyond what was required by RACT in case 
additional NOX reductions are determined to be necessary by 
MDE. Also, except as provided in Sec. H, a person subject to this 
regulation must maintain annual fuel use records on site for not less 
than 3 years, and must make these records available to MDE upon 
request.
COMAR 26.11.09.08.J  Requirements for Fuel Burning Equipment With a 
Rated Heat Input Capacity of 100 MMBtu/hr or Less
    Section J establishes that, by May 8, 1995, the owner or operator 
of fuel burning equipment with rated heat input capacity less than 100 
MMBtu per hour must have submitted to MDE a list of each affected 
installation, the rated heat capacity of each installation, and the 
fuel used. Also, the monthly consumption of each fuel for each 
installation for calendar year 1990 through 1993, and the results of 
any stack tests performed must have been submitted to MDE. For 
installations burning coal or residual oil, this section requires the 
owner to have submitted to MDE a discussion of feasibility and cost of 
switching to gas or No. 2 fuel oil. The owner or operator must also 
have completed a combustion analysis by May 15, 1995 and repeat this 
analysis annually, and operate the equipment at the optimum combustion 
level based on this analysis. From July 1, 1995 through January 1, 
1996, combustion analyses were to be performed quarterly. Analysis and 
test results must be maintained for at least 2 years and be available 
to MDE and EPA upon request. Operators are also required to attend 
operator training on NOX reductions sponsored by MDE, EPA or 
equipment vendors at least once every 3 years, and records of training 
program attendance must be maintained and available for at least 6 
years. Based on data from the Gas Research Institute, the 
NOX Implementation Workgroup, and the Council of Industrial 
Boiler Owners, MDE concluded that this section is acceptable as RACT 
for fuel burning equipment with a heat capacity of 100 MMBtu/hr or 
less. This is acceptable to EPA as RACT for these sources in Maryland.

III. EPA's Analysis

Emission Reduction Averaging

    Section D does not specifically address most of the state program 
requirements established for a discretionary Economic Incentive Program 
(EIP) contained in 40 CFR Part 51 Subpart U. Section D therefore is not 
sufficient to establish a generic emissions trading program--a program 
under which each trading transaction does not have to be approved by 
EPA as a SIP revision--because among other things it does not specify 
procedures by which the alternative limits will be set. Such procedures 
must demonstrate how an emissions trading program achieves overall 
reductions equivalent to RACT implemented on a per unit basis. Section 
D is not clear whether each emissions trading plan must be submitted to 
EPA for approval as a SIP revision, which is required in the absence of 
an EPA approved generic emissions trading program. However, Sec. D also 
establishes minimum record keeping requirements for sources complying 
through emissions trading not contained elsewhere in the Maryland SIP. 
Any trading plans submitted as a separate SIP revisions do not need to 
be authorized by any prior portion of the SIP as far as approval by EPA 
is concerned. As a condition of this rulemaking, Maryland must revise 
the trading provision in this regulation to comply with a discretionary 
EIP or submit all emission trading plans as individual SIP revisions.

[[Page 8037]]

CEM Requirements

    Section F does not clearly define which sources must use CEM and 
which must stack test to demonstrate compliance, but the applicability 
and record keeping requirements described in COMAR 26.11.01.10 and .11 
pertain to this regulation. However, COMAR 26.11.01.11, referenced in 
Sec. F to address CEM requirements, has not been submitted for 
inclusion in the Maryland SIP. Except for those sources in an emissions 
trading program which are covered under the record keeping provisions 
of Sec. D, the record keeping requirements by which sources will 
demonstrate compliance with this regulation are not established. 
Maryland must either submit COMAR 26.11.01.11 to EPA for approval or 
revise Sec. F in the NOX RACT rule to clearly explain the 
reporting and record keeping requirements.
    In a November 7, 1996 policy memo from Sally Shaver, Director, Air 
Quality Strategies and Standards Division of OAQPS, EPA issued guidance 
for approving state generic RACT regulations, like Maryland's, provided 
certain criteria are met. This guidance does not exempt any major 
source from RACT requirements but instead provides for a de minimis 
deferral of RACT only for the purposes of approving the state's generic 
RACT regulation. The de minimis deferral level is determined by using 
the 1990 NOX emissions, excluding the utility boiler 
NOX emissions. The remaining 1990 non-utility boiler 
emissions are then compared with the amount of non-utility 
NOX emissions that have yet to have RACT approved into the 
SIP. Generally, EPA expects that all utility boiler RACTs will be 
approved prior to application of this de minimis deferral policy and 
possible conversion of the generic RACT conditional approval to full 
approval. EPA does not expect to defer more than 5% of the emissions 
calculated in this manner in order to fully approve Maryland's generic 
NOX RACT regulation. In accordance with the November 1996 
policy, EPA is requiring that all utility boiler RACT determinations be 
approved by EPA and all but a de minimis level of non-utility boiler 
RACT determinations be approved into the SIP before the limited 
approval can be converted to full approval. Full approval of a generic 
RACT regulation under this policy does not change the State's statutory 
obligation to implement RACT for all major sources. No major 
NOX source is being exempted from RACT requirements through 
this policy or today's rulemaking.
    Because EPA has not received SIP revisions of source-specific RACT 
determinations for all major sources of NOX subject to RACT 
under the Act, EPA can at best, according to the November 7, 1996 
policy memorandum, propose conditional limited approval of the 
NOX RACT generic rule. In support of this proposed 
rulemaking, the State committed in a letter dated October 29, 1998 to 
submit, as SIP revisions, RACT determinations for all sources subject 
to NOX RACT within 12 months of EPA's final conditional 
approval of the generic rule.

IV. Proposed Action

    Because of the deficiencies discussed above, EPA cannot grant full 
approval of Maryland's NOX RACT rule. EPA is proposing 
conditional limited approval of COMAR 26.11.09.08 ``Control of 
NOX Emissions from Major Stationary Sources,'' and is 
proposing full approval of COMAR 26.11.09.01 ``Definitions'' which were 
both submitted on June 8, 1993 with amendments submitted on July 11, 
1995 as revisions to the Maryland SIP.

Terms of and Rationale for Conditional Approval

    EPA cannot grant full approval of Maryland's NOX RACT 
rule because not every major NOX source is covered by the 
presumptive limits in Sec. C or RACT provisions in Secs. H and J. 
Maryland has the option to submit individual RACT determinations as SIP 
revisions, thus the RACT rule will not be approvable until all of its 
components are approvable. Therefore, EPA is proposing conditional 
approval of Maryland's NOX RACT regulations, based on the 
State's commitment to submit for approval into the SIP, the case-by-
case RACT proposals for all sources subject to RACT requirements 
currently known to MDE. Maryland submitted this commitment in a letter 
to EPA, dated October 29, 1998.
    To fulfill the condition of this approval the State of Maryland 
must, by no later than 12 months after the effective date of EPA's 
final conditional approval of the generic NOX RACT 
regulation:
    1. Certify that it has submitted case-by-case RACT SIPs for all 
sources subject to the RACT requirements currently known to the 
Department, or demonstrate that the emissions from any remaining 
subject sources represent a de minimis level of emissions (as described 
above);
    2. Either submit COMAR 26.11.01.11 to EPA for approval, or revise 
Sec. F to clearly explain the reporting and record keeping requirements 
in COMAR 26.11.09.08;
    3. Change Sec. D to unambiguously require all emissions trading 
plans and proposals be submitted as individual SIP revisions, or meet 
all the requirements of a discretionary EIP.
    Once EPA has determined that the State has met these conditions, 
EPA shall remove the conditional nature of its approval and the 
Maryland NOX regulation SIP revision will, at that time, 
retain limited approval status. Should the State fail to meet the 
conditions specified above, the final conditional limited approval of 
the Maryland NOX RACT regulation SIP revision shall convert 
to a disapproval.

Rationale for Also Proposing Limited Approval

    While EPA does not believe that the Maryland generic NOX 
RACT regulation satisfies the Act's RACT requirements as discussed 
previously in this notice, EPA is also proposing limited approval of 
the Maryland generic RACT regulation on the basis that it strengthens 
the Maryland SIP. After Maryland has fulfilled the conditions of this 
rule and once EPA has approved all of the case-by-case RACT proposals 
as SIP revisions, the limited approval will convert to full approval.
    EPA is proposing conditional limited approval of the Maryland 
NOX RACT regulation, COMAR 26.11.09.08. EPA is proposing 
conditional limited approval of this SIP revision based upon the 
commitment made by Maryland to submit all the case-by-case RACT 
proposals for sources it is currently aware of as being subject to the 
major source RACT regulations. In a letter dated October 29, 1998, 
Maryland committed to submitting all RACT determinations for the major 
NOX sources in the State, submitting COMAR 26.11.01.11, and 
revising the trading rule in COMAR 26.11.09.08.D.

V. Administrative Requirements

A. Executive Orders 12866

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from review under E.O. 12866, entitled ``Regulatory 
Planning and Review.''

B. Executive Order 12875

    Under E.O. 12875, EPA may not issue a regulation that is not 
required by statute and that creates a mandate upon a state, local, or 
tribal government, unless the Federal government provides the funds 
necessary to pay the direct compliance costs incurred by those 
governments. If EPA complies by

[[Page 8038]]

consulting, E.O. 12875 requires EPA to provide to the Office of 
Management and Budget a description of the extent of EPA's prior 
consultation with representatives of affected state, local, and tribal 
governments, the nature of their concerns, copies of written 
communications from the governments, and a statement supporting the 
need to issue the regulation. In addition, E.O. 12875 requires EPA to 
develop an effective process permitting elected officials and other 
representatives of state, local, and tribal governments ``to provide 
meaningful and timely input in the development of regulatory proposals 
containing significant unfunded mandates.'' Today's rule does not 
create a mandate on state, local or tribal governments. The rule does 
not impose any enforceable duties on these entities. Accordingly, the 
requirements of section 1(a) of E.O. 12875 do not apply to this rule.

C. Executive Order 13045

    Executive Order 13045, entitled ``Protection of Children from 
Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23, 
1997), applies to any rule that the EPA determines (1) is 
``economically significant,'' as defined under Executive Order 12866, 
and (2) the environmental health or safety risk addressed by the rule 
has a disproportionate effect on children. If the regulatory action 
meets both criteria, the Agency must evaluate the environmental health 
or safety effects of the planned rule on children and explain why the 
planned regulation is preferable to other potentially effective and 
reasonably feasible alternatives considered by the Agency.
    This proposed rule is not subject to Executive Order 13045 because 
it is not an economically significant regulatory action as defined by 
Executive Order 12866, and it does not address an environmental health 
or safety risk that would have a disproportionate effect on children.

D. Executive Order 13084

    Under E.O. 13084, EPA may not issue a regulation that is not 
required by statute, that significantly affects or uniquely affects the 
communities of Indian tribal governments, and that imposes substantial 
direct compliance costs on those communities, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by the tribal governments. If EPA complies by 
consulting, E.O. 13084 requires EPA to provide to the Office of 
Management and Budget, in a separately identified section of the 
preamble to the rule, a description of the extent of EPA's prior 
consultation with representatives of affected tribal governments, a 
summary of the nature of their concerns, and a statement supporting the 
need to issue the regulation. In addition, E.O. 13084 requires EPA to 
develop an effective process permitting elected and other 
representatives of Indian tribal governments ``to provide meaningful 
and timely input in the development of regulatory policies on matters 
that significantly or uniquely affect their communities.'' Today's rule 
does not significantly or uniquely affect the communities of Indian 
tribal governments. This action does not involve or impose any 
requirements that affect Indian Tribes. Accordingly, the requirements 
of section 3(b) of E.O. 13084 do not apply to this rule.

E. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to conduct a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements unless the agency certifies 
that the rule will not have a significant economic impact on a 
substantial number of small entities. Small entities include small 
businesses, small not-for-profit enterprises, and small governmental 
jurisdictions. This proposed rule will not have a significant impact on 
a substantial number of small entities because conditional and limited 
approvals of SIP submittals under sections 110 and 301, and subchapter 
I, part D of the Act do not create any new requirements but simply 
approve requirements that the State is already imposing. Therefore, 
because the Federal SIP approval does not impose any new requirements, 
EPA certifies that it does not have a significant impact on any small 
entities affected. Moreover, due to the nature of the Federal-State 
relationship under the Clean Air Act, preparation of a flexibility 
analysis would constitute Federal inquiry into the economic 
reasonableness of state action. The Clean Air Act forbids EPA to base 
its actions concerning SIPs on such grounds. Union Electric Co. v. U.S. 
EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).
    If the conditional approval is converted to a disapproval under 
section 110(k), based on the State's failure to meet the commitment, it 
will not affect any existing state requirements applicable to small 
entities. Federal disapproval of the state submittal does not affect 
its state-enforceability. Moreover, EPA's disapproval of the submittal 
does not impose a new Federal requirement. Therefore, EPA certifies 
that this proposed disapproval action does not have a significant 
impact on a substantial number of small entities because it does not 
remove existing requirements nor does it substitute a new federal 
requirement.

F. Unfunded Mandates

    Under section 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rule that includes a Federal mandate that may result in estimated 
annual costs to State, local, or tribal governments in the aggregate; 
or to private sector, of $100 million or more. Under section 205, EPA 
must select the most cost-effective and least burdensome alternative 
that achieves the objectives of the rule and is consistent with 
statutory requirements. Section 203 requires EPA to establish a plan 
for informing and advising any small governments that may be 
significantly or uniquely impacted by the rule.
    EPA has determined that the proposed approval action of Maryland's 
NOX RACT rule does not include a Federal mandate that may 
result in estimated annual costs of $100 million or more to either 
State, local, or tribal governments in the aggregate, or to the private 
sector. This Federal action approves pre-existing requirements under 
State or local law, and imposes no new requirements. Accordingly, no 
additional costs to State, local, or tribal governments, or to the 
private sector, result from this action.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Nitrogen dioxide, 
Ozone, Reporting and record keeping requirements.

    Authority: 42 U.S.C. 7401-7671q.

    Dated: February 9, 1999.
W. Michael McCabe,
Regional Administrator, Region III.
[FR Doc. 99-3996 Filed 2-17-99; 8:45 am]
BILLING CODE 6560-50-P